Masifundise submitted comments to the Department of Agriculture, Forestry and Fisheries, on the Draft Regulation Relating to Small-Scale Fishing.
The regulations were gazetted on the 7 of April 2015. The final date for submitting the comments was on the 28 May.
Masifundise’s comments were based on the empowerment of the fishers that the regulations lack. They also touch on the amount of power given to the minister by the regulations.
“It is trite that the Minister should act within the scope of the empowering statutory provision and for the purposes envisaged by the legislation – also in drafting regulations. Administrators, including Ministers, have no inherent power; they only have the power expressly provided by legislation,” Masifundise wrote.
The comments also touched on a number of issues including legal entities and the recognition of customary rights.
“The proposed regulations must thus enable the Minister to identify and appropriately recognize, protect and promote the rights of customary small-scale fishing communities. This is not a suggestion; it is a legal imperative”.
Section 5 of the MLRA Amendment Act and the SSF Policy both explicitly recognize customary fishing rights in line with the Constitution. Some communities in South Africa, notably in the Eastern Cape and KZN, are able to demonstrate that they have, as a community and since time immemorial, accessed a particular resource in terms of the customary system of governance of their community.
“However, the proposed regulations do not even mention customary rights. We submit that this is a fundamental flaw that must be remedied in order for the Amendment to be enacted,” continued Masifundise.
In the first week of May, Coastal communities submitted their comments to the department.
Fishers support the Small-scale fisheries (SSF) policy, but were concerned that the regulations diluted the voice of the fishers and gave too much power to the Minister. Furthermore, they said that the regulations are not clear in terms of the purpose it needs to serve.
The gazetting of the draft regulation is a mandatory process by the government to hear the voices of those who will be affected by the policy.
The involvement of citizens in policy-making and implementation is important to strengthen and deepen democratic governance. It is through active public participation that evidence-based policy-making and responsive service delivery can take place.
Once the process of taking in comments is done, the department will have a final draft of the regulations.
The MRLA Amendment Act must be promulgated and the target date for the promulgation is June 2015. Once finalised, the minister will launch the official implementation of the Small-Scale Fisheries Policy.